Citation Nr: 0638558
Decision Date: 12/11/06 Archive Date: 12/19/06
DOCKET NO. 03-30 322 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to a disability rating greater than 40 percent
for service-connected history of lumbosacral strain with disk
herniation at L4-5 and L5-S1.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
INTRODUCTION
The veteran served on active duty from June 1987 until June
1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Detroit, Michigan, which denied the above claim.
This matter was previously before the Board in July 2005,
wherein it was remanded for additional development. It is
now returned to the Board for appellate review.
During a VA general medical examination of the veteran
conducted in August 2006, the veteran raised the issues of
entitlement to service connection for depression and for a
cervical spine disorder, secondary to his service-connected
lumbosacral strain with disk herniation at L4-5 and L5-S. As
will be noted below, record evidence indicates that these
presently non-service connected disorders may render the
veteran unemployable. These matters have not been
adjudicated by the RO, and they are therefore REFERRED to
the RO. If the veteran completes an application for service-
connected benefits, the RO should also consider the holding
in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)
(Holding that once a veteran submits evidence of a medical
disability and submits a claim for an increased disability
rating with evidence of unemployability, VA must consider a
claim for a total rating based on individual
unemployability).
FINDING OF FACT
The lumbosacral strain with disk herniation at L4-5 and L5-S1
is manifested by pronounced intervertebral disc syndrome with
persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, with
little intermittent relief.
CONCLUSION OF LAW
The criteria for a disability rating of 60 percent, and not
higher, for lumbosacral strain with disk herniation at L4-5
and L5-S1 have been met. 38 U.S.C.A. §§ 1155, 5107 (West
2002 & Supp. 2005); 38 C.F.R. §§ 4.71a, Diagnostic Code 5293
(as in effect prior to September 23, 2002); 38 C.F.R. §
4.71a, Diagnostic Codes 5293 (as in effect from September 23,
2002 to September 25, 2003); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7,
4.14, 4.40, 4.45 (2003); 68 Fed. Reg. 51,454 - 51,458 (Aug.
27, 2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes
5235 - 5243 (as in effect from September 26, 2003)).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duty to Notify and Assist
VA has specified duties to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. The Board has considered whether further
development and notice under the Veterans Claims Assistance
Act of 2000 or other law should be undertaken. However,
given the results favorable to the veteran, further
development under the VCAA or other law would not result in a
more favorable result for the veteran, or be of assistance to
this inquiry.
In the decision below, the Board grants the veteran's claim
for an increased disability rating. The RO has provided the
necessary notice regarding the assignment of an effective
date in a letter dated in July 2006, and will be responsible
for addressing any notice defect with respect to the rating
and effective date elements when effectuating the award.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Increased Disability Rating
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155. Separate diagnostic codes identify the
various disabilities. Id. It is necessary to evaluate the
disability from the point of view of the veteran working or
seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable
doubt regarding the extent of the disability in the veteran's
favor. 38 C.F.R. § 4.3. If there is a question as to which
evaluation to apply to the veteran's disability, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for that rating. Otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7.
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. §§
4.1, 4.2, 4.41 (2006). Consideration of the whole-recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2 (2006);
Peyton v. Derwinski, 1 Vet. App. 282 (1991).
While the regulations require review of the recorded history
of a disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an
increase in the disability rating is at issue, the present
level of the veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
When a new statute is enacted or a new regulation is issued
while a claim is pending before VA, VA must first determine
whether the statute or regulation identifies the types of
claims to which it applies. If the statute or regulation is
silent, VA must determine whether applying the new provision
to claims that were pending when it took effect would produce
genuinely retroactive effects. If applying the new provision
would produce such retroactive effects, VA ordinarily should
not apply the new provision to the claim. If applying the
new provision would not produce retroactive effects, VA
ordinarily must apply the new provision. Statutes and
regulations are presumed not to apply in any manner that
would produce genuinely retroactive effects, unless the
statute or regulation itself provides for such retroactivity.
See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also Landgraf v.
USI Film Products, 511 U.S. 244 (1994); Regions Hospital v.
Shalala, 522 U.S. 448 (1998); Kuzma v. Principi, 341 F.3d
1327 (Fed. Cir. 2003).
The assignment of a particular Diagnostic Code is "completely
dependent on the facts of a particular case." See Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis
and demonstrated symptomatology. Any change in a diagnostic
code by VA must be specifically explained. Pernorio v.
Derwinski, 2 Vet. App. 625 (1992).
The Board has evaluated the veteran's low back disorder under
multiple diagnostic codes to determine if there is any basis
to increase the assigned rating. Such evaluations involve
consideration of the level of impairment of a veteran's
ability to engage in ordinary activities, to include
employment, as well as an assessment of the effect of pain on
those activities. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portrays the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.40, 4.45.
Diagnostic codes predicated on limitation of motion do not
prohibit consideration of a higher rating based on functional
loss due to pain on use or due to flare-ups under 38 C.F.R.
§§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7
(1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A
finding of dysfunction due to pain must be supported by,
among other things, adequate pathology. 38 C.F.R. § 4.40.
"[F]unctional loss due to pain is to be rated at the same
level as the functional loss when flexion is impeded."
Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).
The regulations for evaluation of certain disabilities of the
spine were revised, effective on September 23, 2002. 67 Fed.
Reg. 54345 (August 22, 2002). Additional revisions were made
to the evaluation criteria for disabilities of the spine, as
well as re-numbering - effective on September 26, 2003.
Either the old or new rating criteria may apply, whichever
are most favorable to the veteran, although the new rating
criteria are only applicable since their effective date.
VAOPGCPREC 3-00, 7-03.
Prior to September 23, 2002, Diagnostic Code 5293 provided
the rating criteria for intervertebral disc syndrome. Under
this code provision, the maximum 60 percent disability rating
was warranted when the intervertebral disc syndrome is
pronounced, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to site of diseased disc, with little
intermittent relief. A 40 percent disability rating was
warranted when the disability is severe, with recurrent
attacks and little intermittent relief. 38 C.F.R. § 4.71a,
Diagnostic Code 5293.
Under Diagnostic Code 5293, effective September 23, 2002 to
September 25, 2003, intervertebral disc syndrome
(preoperatively or postoperatively) is to be rated either on
the total duration of incapacitating episodes over the past
12 months or by combining under Section 4.25 separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other
disabilities, whichever method results in the higher
evaluation. Incapacitating episodes having a total duration
of at least six weeks during the past 12 months warrant a
maximum 60 percent disability rating. Incapacitating
episodes having a total duration of at least four weeks but
less than six weeks during the past 12 months warrant a 40
percent disability rating. 38 C.F.R. § 4.71a, Diagnostic
Code 5293 (2003).
It is noted that for purposes of rating under Diagnostic Code
5293, an incapacitating episode is a period of acute signs
and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so. 38 C.F.R. § 4.71a,
Diagnostic Code 5293 (2003).
Additional potentially applicable diagnostic code provisions
regarding the lumbar spine which could provide a disability
rating in excess of 40 percent prior to September 26, 2003,
have also been considered.
Diagnostic Code 5285 provides that a 100 percent disability
rating is warranted for residuals of fracture of the vertebra
with cord involvement, bedridden, or requiring long leg
braces. The schedule notes that special monthly compensation
should be considered; and with lesser involvements rate for
limited motion, nerve paralysis. A 60 percent disability
rating is warranted for residuals of fracture of the vertebra
without cord involvement; abnormal mobility requiring neck
brace (jury mast). The schedule also provides that in other
cases, rate in accordance with definite limited motion or
muscle spasm, adding 10 percent for demonstrable deformity of
vertebral body. It is noted that both under ankylosis and
limited motion, ratings should not be assigned for more than
one segment by reason of involvement of only the first or
last vertebrae of an adjacent segment. 38 C.F.R. § 4.71a,
Diagnostic Code 5285 (2003) (effective prior to September
26, 2003).
Diagnostic Code 5286 provides that a 100 percent disability
rating is warranted for complete bony fixation of the spine
in an unfavorable angle, with marked deformity and
involvement of major joints (Marie-Strumpell type) or without
other joint involvement (Bechterew type). A 60 percent
disability rating is warranted for complete bony fixation
(ankylosis) of the spine in a favorable angle. 38 C.F.R.
§ 4.71a, Diagnostic Code 5286 (2003) (effective prior to
September 26, 2003).
Under Diagnostic Code 5289, a maximum 50 percent disability
rating is warranted for unfavorable ankylosis of the lumbar
spine. 38 C.F.R. § 4.71a, Diagnostic Code 5288 (2003)
(effective prior to September 26, 2003).
A new rating formula for the spine became effective September
26, 2003. Under the new rating formula, intervertebral disc
syndrome should be evaluated either under the General Rating
Formula for Diseases and Injuries of the Spine or under the
Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes, whichever method results in the
higher evaluation when all disabilities are combined under §
4.25. Under the Formula for Rating Intervertebral Disc
Syndrome Based on Incapacitating Episodes, a maximum 60
percent disability rating is warranted for incapacitating
episodes having a total duration of at least six weeks during
the past 12 months. A 40 percent disability rating is
warranted for incapacitating episodes having a total duration
of at least four weeks but less than six weeks during the
past 12 months. 68 Fed. Reg. 51,456 (2003) (now codified at
38 C.F.R. § 4.71a, Diagnostic Code 5243 (2006)). The Board
notes that aside from changing Diagnostic Code 5293 to
Diagnostic Code 5243, the criteria for rating intervertebral
disc syndrome remained essentially unchanged after the
September 26, 2003 amendment. See Diagnostic Code 5293 (2002
and 2003); Diagnostic Code 5243 (2006).
Under the General Rating Formula for Diseases and Injuries of
the Spine, unfavorable ankylosis of the entire spine warrants
a 100 percent disability rating. Unfavorable ankylosis of
the entire thoracolumbar spine warrants a 50 percent
disability rating. Unfavorable ankylosis of the entire
cervical spine; or, forward flexion of the thoracolumbar
spine 30 degrees or less; or favorable ankylosis of the
entire thoracolumbar spine warrants a 40 percent disability
rating. 68 Fed. Reg. 51,456 (2003) (now codified at 38
C.F.R. § 4.71a, Diagnostic Code 5243 (2006)).
It is noted that any associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, are to be evaluated separately, under an
appropriate diagnostic code. It is also noted that for VA
compensation purposes, normal flexion of the thoracolumbar is
zero to 90 degrees, extension is zero to 30 degrees, left and
right lateral flexion are zero to 30 degrees, and left and
right lateral rotation are zero to 30 degrees (see also Plate
V). The combined range of motion refers to the sum of the
range of forward flexion, extension, left and right lateral
flexion, and left and right rotation.
Diagnostic Code 5242 also provides for degenerative arthritis
of the spine (see also Diagnostic Code 5003). Traumatic
arthritis established by X-ray findings is to be evaluated
as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic
Code 5010. Degenerative arthritis established by X-ray
findings will be evaluated on the basis of limitation of
motion of the specific joint or joints involved. Diagnostic
Code 5003. When the limitation of motion of the specific
joint or joints involved is noncompensable under the
appropriate diagnostic codes, an evaluation of 10 percent is
applied for each major joint or group of minor joints
affected by limitation of motion. These 10 percent
evaluations are combined, not added, under Diagnostic Code
5003.
A VA spine examination report dated in October 2001 reveals
that the veteran reported pain, weakness, stiffness,
fatigability, and lack or endurance. He described that his
back was definitely getting worse, and causing increased
disability. Sitting for a long time and walking would cause
back pain, while lying down would alleviate the pain. He
stated that he was constantly in pain, a seven on a scale of
zero to 10. He reported using high support shoes, but did
not use crutches, braces or a cane.
Upon clinical examination, extension of the spine was limited
to 15 degrees. Lateral bending of the spine was limited by
pain, and was 20 degrees to the right, and 20 degrees to the
left. Rotation of the spine was 20 degrees to the right and
15 degrees to the left. There was reported pain with
rotation, lateral bending, and extension of the spine.
The examiner found no spasm, tenderness, or significant
postural abnormalities. The musculature of the back was not
significantly atrophied. X-rays of the spine revealed very
minimal scoliosis, although the findings were subtle. The
diagnosis, in pertinent part, was lumbar spine disorder with
objective evidence of disk protrusion at L4/L5, and also at
LS/S1, being manifested by marked restriction in range of
motion of flexion of the thoracic and lumbar spine, and in
lateral bending of the spine and rotation of the spine, with
apparent significant pain.
A VA joints examination report dated in March 2003 reveals
that the veteran reported that his back disability had
worsened since the last VA examination as evidenced by
increased back pain associated with numbness and tingling
from the lower back to hips radiating down the legs to the
feet. He described this discomfort as always present but
would worsen with walking more than two to three blocks,
twisting at the waist, and flexion of the spine. He stated
that he was unable to participate in activities as
previously. He denied bowel and bladder problems. He
described increased pain with exercise and difficulties
finding a comfortable lying position. He rated his pain as
being 8.5 and during flare-ups, at level 10. He added that
he had visited the emergency room in the past for pain
medications and back injections.
Physical examination revealed that the veteran would ambulate
with a steady gait, though he appeared to be in discomfort.
There was no tenderness upon palpation of the spine and no
muscle spasms. He verbalized discomfort with palpation of the
lower spine. Flexion of the spine was to 45 degrees,
extension to 10 degrees, lateral bending to 10 degrees,
rotation to 10 degrees, and straight leg raise to 10 degrees.
Beyond the degrees mentioned caused lower back pain. X-rays
of the lumbar spine revealed moderate degenerative disc
disease at L5-S1. There was no acute bony abnormality. The
impression, in pertinent part, was degenerative disc disease
of the lumbar spine.
During a VA general medical examination in August 2006, the
veteran reported not being able to work since 1993. He
reported being laid off from his work because of his back
and his knee. The veteran reported having constant, daily
pain of the low back, described as a 10 on a scale of one to
10, even with medications. The pain was said to be
throbbing, aching, and at times sharp. It was at the
beltline, radiating on the left side to the hips, legs and
feet. Sometimes the legs and feet would feel numb and cold.
The frequency of flare-ups would depend upon what he did, and
each would last up to 30 days. He would usually go to bed
for the first day or so. He had not had any physician-
prescribed bed rest for the low back. He reported seeing an
orthopedic physician and a neurosurgeon who initially told
him nothing could be done for the back and then suggested
possible surgical intervention. His tolerability against the
low back pain was walking 30 minutes and sitting 30 minutes.
He reported that standing immediately was difficult. His
ability to play basketball and baseball were said to have
been affected by the low back disorder. He said it also
affected his ability to do physical labor, bend, stoop, and
squat.
Physical examination revealed that he could not walk on his
heels and toes. He could not initiate tandem gait. He was
very dis-coordinate. He walked with a loss of psychomotor
retardation and walked very rigidly. He had a mild rotor
curvature in lumbothoracic junction. He was using a cane.
On palpation of spine there was tenderness down the lower
paravertebrals, right and left L1-L5. Range of motion of the
lumbar spine was measured to be 30/90 degrees of active
forward flexion. There was pain, fatigability, lack of
endurance, incoordination, and loss of range of motion
reducing the range 25 degrees. Pain began at 10 degrees,
over the Ll-L5 paravertebrals. Passive forward flexion was
30/90 degrees. Active and passive extension was to 15/30
degrees. He reported pulling the last five degrees over the
lower lumbar muscles, but there was no fatigability, lack of
endurance, incoordination, loss of range of motion with
repetitive movement. Active and passive lateral flexion to
the right was 20/30.
Pain began at five degrees at the range over the left
posterior lumbar regional junction. There was fatigability,
lack of endurance, incoordination, and loss of range of
motion due to pain. Active lateral flexion to the left was
22/30 degrees active and passive was 28/30 degrees. There
was pulling over the right posterior lumbar junction from
five degrees on but there was no lack of endurance,
incoordination, loss of range of motion or fatigability with
repetitive motion due to pain. Rotation was not attempted as
the veteran had too much spasm. He was holding on with one
hand to the counter and one hand to the examination table.
He was holding a very rigid spastic position with forward
flexion of the lumbar thoracic spine.
The clinical impression was spinal disk injury to the lower
lumbar spine with progression of degenerative disk disease
and radiculopathy, right and left lower sternal tract. The
veteran said that walking, sitting, and standing were
minimally tolerable. His sleep was affected. The examiner
commented that this condition was significantly and
prominently disabling to the veteran's overall employability.
X-rays of the lumbar spine indicated a segmental error and
evidence of previous left L5 laminectomy.
After reviewing the entire medical record, the Board finds
that a disability rating of 60 percent for the veteran's
lumbosacral strain with disk herniation at L4-5 and L5-S1 is
warranted. As indicated above, prior to the regulatory
change in September 23, 2002, the veteran's lumbar spine
disability was rated as 40 percent disabling under Diagnostic
Code 5293 for intervertebral disc syndrome. In order to
receive the next higher 60 percent disability rating, the
evidence must show intervertebral disc syndrome that is
pronounced, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to the site of the diseased disc, and little
intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code
5293 (2002).
The evidence has shown that the veteran experiences constant
pain and decreased range of motion of the lumbosacral spine,
with fatigability, lack of endurance, incoordination, and
loss of range of motion at extended ranges. The veteran
could only minimally tolerate walking, sitting, or standing.
There was radiculopathy to the lower extremities, and there
were demonstrable muscle spasms. As such, the evidence has
shown that the veteran's low back disability warrants the
maximum disability rating of 60 percent under Diagnostic Code
5293 under the criteria in effect prior to September 23,
2002.
The only other potentially applicable criteria, under which a
schedular rating higher than 60 percent is possible includes
Diagnostic Code 5286 for complete bony fixation (ankylosis)
of the spine, and Diagnostic Code 5285 for residuals of
fracture of vertebra. These diagnostic codes, however, do
not apply as none of the records show findings of a fractured
vertebra or any residuals.
In considering the rating criteria in effect as of September
23, 2002, in order to receive the maximum 60 percent
disability rating for intervertebral disc syndrome under the
new rating formula for the spine, the evidence subsequent to
September 23, 2002, must show incapacitating episodes having
a total duration of at least six weeks during the preceding
12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2006).
As noted above, however, the examiner in August 2006
specifically set forth that the veteran had not had any
physician-prescribed bed rest for the low back. As such,
there are no findings of incapacitating episodes, related to
the service-connected lumbar spine, and a higher disability
rating under the new criteria would not be appropriate. Id.
Under the General Rating Formula for Diseases and Injuries of
the Spine, a 100 percent rating would be warranted for
unfavorable ankylosis of the entire spine. 38 C.F.R. §
4.71a, Diagnostic Code 5243 (2006). However, there is no
evidence of record that the veteran has unfavorable ankylosis
of the entire spine, thus, a disability rating higher than 60
percent also does not apply under the general rating formula
for spine disabilities. Id.
The revised schedule provides for a separate evaluation for
any associated objective neurologic abnormalities, including,
but not limited to, bowel or bladder impairment, under an
appropriate diagnostic code. See 38 C.F.R. § 4.71a,
Diagnostic Code 5243, Note (1). As indicated above, the
veteran has denied any bowel or bladder impairment.
Accordingly, the veteran is not entitled to a separate
neurological disability rating, as it applies to his lumbar
spine disability. Id.
The veteran also is not entitled to a separate compensable
evaluation for limitation of motion of the lumbar spine due
to degenerative disc disease, which is rated as degenerative
arthritis under Diagnostic Code 5003. Evaluations for
distinct disabilities resulting from the same injury may be
separately evaluated as long as the symptomatology for one
condition is not "duplicative of or overlapping with the
symptomatology" of the other condition. Esteban v. Brown, 6
Vet. App. 259, 261- 62 (1994). To assign a separate
evaluation for limitation of the motion of the spine due to
degenerative arthritis is similarly not permitted under the
criteria. See 38 C.F.R. §§ 4.14 and 4.71a, Diagnostic Code
5003 and following notes.
A rating higher than that already assigned, based on
functional loss due to weakness, fatigability,
incoordination, or pain on movement of a joint is not
warranted. See 38 C.F.R. §§ 4.40, 4.45, and 4.59; DeLuca, 8
Vet. App. at 206-08. As a result of the decision rendered
herein, the veteran's low back disability will be rated at
the maximum level provided under Diagnostic Code 5293 under
the criteria in effect prior to September 23, 2002.
Regulations concerning functional loss are not applicable to
increase the rating where a disability is rated at the
maximum level provided by the diagnostic code under which it
is rated, as is the veteran's situation. See VAOPGCPREC 36-
97 (holding that consideration must be given to the extent of
disability under 38 C.F.R. §§ 4.40 and 4.45 "when a veteran
has received less than the maximum evaluation" under
Diagnostic Code 5293); see also Johnston v. Brown, 10 Vet.
App. 80, 85 (1997) (Remand for the Board to consider
functional loss due to pain was not appropriate where the
claimant was already receiving the maximum disability rating
available for limitation of motion); Spurgeon v. Brown, 10
Vet. App. 194, 196 (1997) (although the Board is required to
consider the effect of the veteran's pain when making a
rating determination, the rating schedule does not require a
separate rating for pain).
Therefore, because functional loss is already being
compensated, and because the veteran is receiving the maximum
schedular evaluation, an increased disability rating based on
functional loss is not available. The Board finds,
therefore, that the provisions of 38 C.F.R. §§ 4.40 and 4.45
are not applicable.
The Board has considered the veteran's assertions that his
low back disability warrants a higher disability rating.
While he is competent to report that his symptoms are worse,
the training and experience of medical personnel makes the VA
and private physicians' findings more probative as to the
extent of the disability, as applied to the rating schedule.
Massey v. Brown, 7 Vet. App. 204, 208 (1994) and Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
The veteran is entitled to be rated under the diagnostic code
that allows the highest possible evaluation. Schafrath, 1
Vet. App. at 589. Accordingly, the Board finds that a 60
percent disability rating is warranted under Diagnostic Code
5293 under the criteria in effect prior to September 23,
2002. The preponderance of the evidence is against the
assignment of a disability rating higher than 60 percent
under either the old or new criteria. See 38 U.S.C.A. §
5107(b) (West 2002 & Supp. 2005); Gilbert v. Derwinski, 1
Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed.
Cir. 2001).
In the veteran's post-remand brief dated in November 2006,
the veteran's representative asserts that this matter be
referred for extraschedular consideration. The Board has
considered an extraschedular evaluation under the provisions
of 38 C.F.R. § 3.321(b)(1) and determined referral for
extraschedular consideration is not warranted in this case.
There is no indication in the record of such an unusual
disability picture that application of regular schedular
standards is impractical, especially in the absence of
frequent hospitalizations or marked interference with
employment.
Although the VA examiner in August 2006 suggested that the
veteran's low back disability was significantly and
prominently disabling to the veteran's overall employability,
the veteran also reported during the examination that his
ability to work had also been impaired by a knee disorder and
by stress and depression. As such, the impairment of tasks
required in the veteran's employment as affected by his low
back disability is contemplated in the Rating Schedule, and
is the basis for the disability rating currently assigned.
The Board finds that the criteria for submission for an
extra-schedular rating pursuant to 38 C.F.R.
§ 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App.
237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash
v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to a disability rating of 60 percent for service-
connected history of lumbosacral strain with disk herniation
at L4-5 and L5-S1 is granted subject to controlling
regulations governing the payment of monetary benefits.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs